False Representation made by a third person of the profits of a business, such third person not having been communicated with before the action was brought, nor having represented himself as Agent for the defendants in that action, are not the legal and natural consequences of the Breach of Contract or of the Injury which has been inflicted (f). But it is otherwise, when on the third person being communicated with, before action was brought, he said that the plaintiffs might safely go on with their action, and also professed to have authority as Agent for the Representations which he made (g). This rule illustrates the maxim "In jure non remota causa sed proxima spectatur"—it is the proximate only and not the remote consequences of an act that are to be regarded. But as to the degree of remoteness it is said that no distinct line can be drawn. In each case the Court must say, as a matter of law, whether it is on the one side or the other (h). In Hobbs v. London and South Western Railway Co. (i), the plaintiffs took tickets to travel by a midnight train from W. to H. The train did not go to H., and the plaintiffs were taken to E., which was a station further from the plaintiffs' house than H. was. The plaintiffs walked home in the wet from E., there being no conveyance to be had. It was held that damages might be given for the personal inconvenience and discomfort of having so to walk, but not for illness brought on by the dampness of the night. But where an innkeeper contracted to provide stabling for twelve horses for the plaintiff during a particular fair, and failed to do so, it was held that the plaintiff could recover damages for injury caused to the Horses by exposure to the weather while he was engaged in finding other stables for them (k). as to rules of The Judge should direct the Jury as to any established Judge to rules of measuring the Damages applicable to the parti- direct Jury cular case, and the omission to do so is a ground for a new Damages. trial (1). In accordance with the rule that Damages should be Damages estimated by the legal and natural consequences of the arising from special circumstances. (f) Richardson v. Dunn, 30 L. J., C. P. 44. (g) Randell v. Trimen, 25 L. J., C. P. 307. (h) Hobbs v. London and South Western Railway Co., L. R., 10 Q. B. 117; 44 L. J., Q. B. 52; 32 L. T., N. S. 352; 23 W. R. 520; per Blackburn, J. (i) Ubi supra. (k) McMahon v. Field, L. R., 7 Q. B. D. 591; 50 L. J., Ex. 552 -C. A. (1) Hadley v. Baxendale, 23 L. J., Ex. 179; Smeed v. Foord, 28 L. J., Q. B. 178. Effect of notice. Breach of Contract, or such as may be reasonably supposed to have been in the contemplation of the parties at the time they made the Contract, as the probable result of the Breach of it, it was laid down in Hadley v. Baxendale (m), that where a Contract is made under special circumstances, which are communicated by one of the contracting parties to the other, the Damages resulting from a Breach of the Contract, which the parties would reasonably be supposed to have contemplated, are the amount of Injury, which would ordinarily follow from such a Breach of Contract under the special circumstances. But if the special circumstances are unknown to the party breaking the Contract, he, at the most, can only be held to have contemplated the amount of Injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances, from such a Breach of Contract. Therefore in a case where a miller employed a carrier to deliver a broken shaft to an engineer for repair, and the carrier was guilty of an unreasonable delay in delivering it, the result of which was the stoppage of the mill, and a consequent loss of profits, it was held that such a loss of profits should not be taken into consideration by the Jury in estimating the Damages, as the carrier had not been informed that this would be the result or the probable result of his negligence (m). And it is held that generally the mere notice or knowledge of the special circumstances will not render the party liable for the special consequences of a Breach under such circumstances, or for the failure of the special purposes of the contract; unless he has expressly or impliedly contracted upon the basis of such special circumstances, and undertaken to be bound for the consequences. Thus, in an action against a carrier for not delivering a parcel of goods, the mere knowledge on his part that the parcel contained a part of the machinery of a mill, without which the mill could not be erected, was held not sufficient to charge him with the consequences of the stoppage of the mill until the machinery could be replaced; and the damages were restricted to the cost of replacing the part lost, with interest upon that amount whilst remaining unpaid (n). And it is said that "in order that the notice may have any effect, it must be given under such circum (m) Hadley v. Baxendale, 23 L.J., Ex. 179; Smeed v. Foord, 28 L. J., Q. B. 178. (n) Leake on Contracts, 1046, 1047, and cases there cited. stances as that an actual contract arises on the part of the defendant to bear the exceptional loss" (»). Conversion. In the ordinary case of Trover for a Horse, the plaintiff Damages recovers the value of the Horse, and not what the Horse for wrongful might have earned besides (o). Special damages may be recovered in trover if laid. Therefore, where in trover for a Horse it was laid as special damage, that the plaintiff was obliged to hire other Horses, it seems that the amount of damages should be the value of the plaintiff's Horse when taken, and the sum be paid for hire, deducting what would have been the expense of keeping his own Horse for the time (p). Where the property in goods has passed under the Contract, but the price has not been paid, and the vendor has wrongfully converted and disposed of the goods so as to preclude himself from delivering them, and recovering the price, the vendee can only recover the difference between the value of the goods and the contract price, and cannot recover the full value by suing for the Conversion of the goods instead of for the Breach of Contract (g). Whenever a party is liable for a Breach of a Contract, Damages in either express or implied, it seems that the plaintiff is tort. entitled at all events to nominal Damages; although the action be framed in Tort for such Breach of Contract, and no actual Damage be proved (r). But in the case of actions framed in Tort for Breach of Contract (s), the Damages must be such as are capable of being appreciated or estimated, whereas in such as are not founded on Contract the Jury may consider the injury to the feelings, and many other matters, which have no place in actions of Contract (t). tain. In an action for the recovery of a fixed pecuniary de- In actions for mand, which the defendant has not shown grounds for a sum cerreducing, by proving a partial failure of Consideration, it is obviously in general the duty of the Jury to give the plaintiff neither more nor less than the sum specified (u). (n) Per Blackburn, J., in Horne v. Midland Railway Co., L. R., 8 C. P. 131; 42 L. J., C. P. 54. (0) Per Jervis, C. J., Read v. Fairbanks, 22 L. J., C. P. 206. (p) Davis v. Oswell, 7 C. & P. 804; see further, France v. Gaudet, L. R., 6 Q. B. 199; 40 L. J., Q. B. 121. (q) Chinery v. Viall, 29 L. J., Ex. 180; Johnson v. Stear, 33 L. J., C. P. 130. (r) Rolin v. Steward, 23 L. J., C. P. 148; Chit. Contr. 10th ed. 813. (s) The action for breach of contract of marriage is the only exception. (t) Per Pollock, C. B., Hamlin v. Great Northern Railway Co., 1 H. & N. 410. (u) Chit. Contr. 10th ed. 813. Interest. Effect of 3 & 4 Will. 4, c. 42, s. 28. 17 & 18 Vict. c. 90. In Actions which sound in Damages. However, by 3 & 4 Will. 4, c. 42, s. 28, it is enacted, "that upon all debts or sums certain, payable at a certain time or otherwise, the Jury on the trial of any issue, or on any inquisition of Damages, may, if they shall think fit, allow Interest to the creditor, at a rate not exceeding the current rates of Interest, from the time when such debts. or sums certain were payable if such debts or sums be payable by virtue of some written instrument at a certain time; or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give Notice to the debtor, that Interest will be claimed from the date of such demand until the term of payment: provided that Interest shall be payable in all cases in which it is now payable by law." This provision does not extend to special actions on Contracts, strictly for the recovery of unliquidated Damages resulting from the Breach of such Contracts, and ascertainable only by a Jury, for instance, actions for not delivering goods, &c. (x). Nor, as it appears, to any case in which the claim is not for a sum certain as contradistinguished from one the amount of which is merely capable of being ascertained (y). Its effect is to leave it discretionary in the Jury to allow Interest even in the cases specified; in other cases it is to be taken as limiting their discretion, unless there be proof of a written instrument, whereby the sum certain is made payable at a certain time, or of a written demand of the money containing a Notice that Interest from thenceforth will be claimed; and in all those cases, in which it was payable by law at the time the act was passed, to make it compulsory on the Jury to give Interest. By the Act to repeal the laws relating to usury (≈), it is enacted, that, where Interest is now payable upon any Contract, express or implied, for payment of the legal or current rate of Interest; or where upon any debt or sum of money Interest is now payable by any rule of law, the same rate of Interest shall be recoverable as if that Act had not passed. But in all actions which sound in Damages, the Jury seem to have a discretionary power of giving what Damages they think proper; for though in contracts the very sum specified and agreed upon is usually given, yet, if there be (x) Chit. Contr. 10th ed. 599. 43 L. J., Ch. 566. () 17 & 18 Vict. c. 90, s. 3. any circumstances of hardship or extreme folly, though not sufficient to invalidate the contract, the Jury may consider them, and proportion and mitigate the Damages accordingly. Thus, where an action was brought on a promise of 1,0007. if the plaintiff should find the defendant's Owl; the Court held, though the promise was proved, that the Jury might mitigate the Damages (a). And where an action was brought in special Assumpsit, A Foolish on an agreement to pay for a Horse a barley-corn a nail, bargain. doubling it for every nail in the Horse's shoes; there were thirty-two nails, and this being doubled, every nail in a geometrical progression, came to five hundred quarters of barley; and on the cause being tried before Mr. Justice Hyde at Hereford, the Jury, under his direction, gave the real value of the Horse, 87. as Damages; and this Contract seems to have been held valid; for it appears by the report that there was afterwards a motion to the Court in arrest of Judgment, for a small fault in the Declaration, which was overruled, and the plaintiff had judgment (b). And where in consideration of 2s. 6d. paid down, and An impossible 41. 178. 6d. to be paid at the end of the year, the de- contract. fendant agreed to deliver two grains of rye on the then next Monday, and double in geometrical progression every succeeding Monday for a year, which it was stated would have amounted to a larger quantity of rye than existed in the whole world, the Court on demurrer seemed to consider the Contract good in law; and Mr. Justice Powell said, "That although the Contract was a foolish one, yet it would hold good in law, and that the defendant ought to pay something for his folly;" upon which the defendant agreed to return the plaintiff his half-crown and pay the costs, and so the case was compromised (c). And an action will lie for the performance of a Contract undertaken for a valuable consideration, though its performance turns out to be impossible (unless it has been rendered impossible by the act of the other party), for it is the result of the "heedlessness of the contracting party, if he runs the risk of undertaking to perform an impossibility, when he might have provided against it by his Contract" (d). But where the law casts a duty on a man, (a) Bac. Abr. Damages (D), 602. (b) James v. Morgan, 1 Lev. 111; S. C. 1 Keb. 569; and Chit. Contr. 10th ed. 20. (c) Thornborow v. Whitacre, 2 Ld. Raym. 1164. (d) Per Williams, J., Hale v. Rawson, 27 L. J., C. P. 191. |